PROPOSED PILOT PROGRAM FOR CONNECTICUT JUDICIAL SYSTEM WOULD ALLOW ATTORNEYS TO OFFER LIMITED SCOPE REPRESENTATION OR "UNBUNDLING"!

At the Annual 2012 meeting of judges in Connecticut, Judge Chase Rogers expressed concern about the rising number of self represented parties in the judicial system today.  Right now, at least 85% of cases in family court have one or both parties representing him or herself. 

 

Like many other States around the country, Connecticut has been trying to adjust the way it does business in order to respond to this situation. 

 

For example, most courthouses in Connecticut have a Court Service Center available for self-represented parties where there are computers, fax and copy machines, as well as a telephones which they can use free of charge.  Some of these Centers have clerks working there who are available to provide litigants with court forms and answer basic questions about how to navigate your way around the court system. The larger court service centers have regular hours where marshalls are available to take papers that need to be served. 

 

In addition, some courthouses have volunteer attorneys available once a week to answer questions on a first come, first serve basis. 

 

Also, the Connecticut Judicial Website has tutorials and videos to keep self represented parties informed about some of the more basic procedures they are required to follow, i.e. information on how to file an appearance. 

 

Now, if judges approve the new addition to The Connecticut Practice Book proposed for this year, Section (b) of Rule 3-8 Appearance for Represented Party, the Chief Court Administrator will be authorized to establish a pilot program for Limited Scope Representation (or what is informally known as "unbundling") by attorneys in one or more judicial districts throughout the state. 

 

What is Limited Scope Representation?  This is a concept originally attributed to UCLA law Professor Forrest S. Mosten who, in 2000, wrote the book "Unbundling Legal Services:  A Guide to Delivering Legal Services a la Carte."  It consists of a method of legal representation in the United States where an attorney and client limit the scope of the attorney's involvement in a lawsuit to specific aspects of the case and leaving the remaining aspects to the client as a means to save money.

 

As with other things, when it comes to innovative practices like this, we in the State of Connecticut are somewhat slow about getting cutting edge practices such as Limited Scope Representation implemented.  Thus, according to a an article written in 2010 by Susan Cartier Liebel, "Is 'Unbundling' in Your Future?  It Better Be or You May Have No Future," "Forty-one states, including California and New Hampshire, have [already] adopted a model rule drafted by the American Bar Association" 

 

Why is this happening and why is Limited Scope Representation so popular?  According to Ms. Liebel, litigants simply cannot afford to spend lots of money on legal representation in these difficult economic times.  Not only that, the spread of information on the internet combined with a judicial system that itself provides litigants with considerable information has empowered people to the point where they want more input into what happens in their cases. 

 

Connecticut's new Limited Scope Representation laws will come with some limitations.  For example, only attorneys affiliated with this pilot program would be able to file a Limited Scope Appearance.  Attorneys will not be allowed to file limited appearances in connection to criminal or juvenile cases. 

 

And for those who are interested, this still does not constitute side by side representation where a self represented party conducts the case on an equal basis with the attorney.  In any matters for which the self represented party has legal representation, the self represented party must step aside and allow the attorney full authority. 

 

On the other hand, interestingly enough, an attorney will not be able to file a limited scope appearance until the self represented party has filed his or her appearance. 

 

The Practice Book has other suggested rule changes to accommodate limited scope representation. Such rule changes are as follows: 

 

Under Rule 1.5 Fees, Section (b), newly proposed rules require the attorney to file an appearance for the specific services he will provide and then he is required to file a Certificate of Completion once those services have been provided. 

 

Under Rule 1.16 Declining or Terminating Representation, an attorney who provides limited scope representation will not have to ask permission from a judge in order to terminate his representation.  For those of us who have suffered because of attorneys who will not go away, this will be a considerable improvement!

 

Rule 3-8 Appearance For Represented Party, Section (b) gives the attorney specific instructions on how to file an appearance when providing limited scope representation stating, among other things, that the attorney in this situation will only receive copies of documents related to the matter he will be working on. 

 

Section 3-9 Withdrawal of Appearance provides details on how to file a Certificate of Completion regarding the matter for which an attorney provided limited scope representation. 

 

Under Rules of Professional Ethics 4-2 Communication With a Person Represented by Counsel, the opposing counsel is not allowed to discuss with the self-represented party any matters that will be handled for that party by an attorney under a limited scope representation agreement.

 

Rules from Chapter 4-2 Signing of the Pleading states that if an attorney assisted a self represented party in writing a pleading (ghostwriting!), that attorney is not required to sign the pleading, but there should be an acknowledgement of that attorney's assistance in the pleading. 

 

Some well known attorneys in Connecticut have already begun to take advantage of this approach.  For example, Attorney Susan Wakefield of Connecticut Legal Coaching. 

For more information on Attorney Wakefield, see the link below:

http://www.ctlegalcoaching.com/


Attorney Wakefield is an attorney with over 22 years of experience who has put together a law film with the expressed intention of assisting litigants who are representing themselves in their divorce, custody, or post-divorce matter. 

 

As she puts it, "Legal Coaching, with its unique pay-as-you-go and "A La Carte" structure makes quality legal services accessible to all individuals so they can acquire the knowledge and tools needed to navigate through the system on their own." 

 

There is also Greenwich Attorney Barbara Shea with her unbundled legal services known as "Partners-in-Law", a part of the law firm that allows people to represent themselves with some legal guidance to point them in the right direction."  Journalist Debra Cassens Weiss reports Shea as saying, "Instead of letting someone dump everything on my desk, I teach them the smart way to solve a case...The concept is based on giving clients choice and control over their legal matters."  

I would add more on contacting Attorney Barbara Shea because I do like her ideas, but she has been reprimanded by the Statewide Grievance Committee on more than one occasion.  So working with her is all at your own risk.  I don't know what to say about her history, except that I know of people who have done so much worse that she did who are walking around scott free.  People can be redeemable, but every litigant has to make up his or her own mind. 

 Finally, attorneys have raised some ethical concerns in regard to this practice.  For example, limited scope representation could allow attorneys to evade the legal consequences of malpractice by simply saying, I didn't represent the client in that area. 

 

There could be problems with communication which result in a situation where the attorney and the client are unsure of who is responsible for what aspect of the case, and then someone drops the ball on some vital area of the case as a consequence and both end up blaming the other. 

 

In terms of legal ghostwriting, if an attorney writes documents for a self represented party, this could give the self represented party an advantage in situations where judges allow self represented parties more leeway.  Proposed Connecticut Rules do require a litigant to acknowledge the assistance of an attorney, but who is to know how faithfully such rules will be followed. 

 

Despite these criticisms, with more than 40 states on board, it doesn't look like anything will be able to stop the momentum behind the movement to provide Limited Scope Representation.  Online businesses such as LegalZoom and "Ask an Attorney" websites are prospering in the busy, chaotic, fairly unregulated internet marketplace and there are no signs of them stopping any time soon. 

RELATED LINKS:

http://www.courts.ca.gov/partners/documents/SH-tab2.pdf

ABA White Paper,
http://www.americanbar.org/content/dam/aba/migrated/legalservices/delivery/downloads/prose_white_paper.authcheckdam.pdf